BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

[This summary does not form part of the decision.]

Newshub broadcast a story about the outcome of a review by Michael Heron QC of Ministry for Primary Industries (MPI) fisheries prosecution decisions. The reporter referred to the resignations of two senior MPI officials, implying that the resignations were connected to the outcome of the Heron review. The Authority upheld the complaint that the broadcast was unfair. The item reflected negatively on the two individuals’ professional reputations and had the potential to adversely affect them. In the interests of fairness, the broadcaster should have given the individuals affected a fair and reasonable opportunity to respond to the allegations, which did not occur. The Authority did not uphold the complaint that the item breached the accuracy standard, as it found the broadcaster had made reasonable efforts to ensure accuracy by relying on sources which it satisfied itself were credible. The allegations were presented alongside MPI’s position that the resignations were not connected to the Heron review, so viewers would not have been misled.

Upheld: Fairness; Not Upheld: Accuracy

No Order

Introduction

[1]  Newshub broadcast a story about the outcome of a review by Michael Heron QC of Ministry for Primary Industries (MPI) fisheries prosecution decisions. As part of the story, the reporter referred to the recent resignation of two senior MPI officials, A and B.

[2]  MPI complained that the item incorrectly connected the resignations of the two senior officials to Mr Heron’s review, relying on alleged anonymous sources to make the connection. Specifically, MPI complained that MediaWorks failed to:

• give fair and reasonable opportunities to persons affected by the allegation, to comment on the allegation; and
• take reasonable steps to ensure that the allegations from its anonymous sources were accurate.

[3]  The issues raised in MPI’s complaint are whether the broadcast breached the fairness and accuracy standards as set out in the Free-to-Air Television Code of Broadcasting Practice.

[4]  The item was broadcast on 16 September 2016 on TV3. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Nature of the programme and freedom of expression

[5]  The item was introduced by the newsreader as follows:

An investigation into the illegal dumping of fish has found the Ministry for Primary Industries failed in its duty to prosecute fishermen. The report, by a leading QC, also reveals that MPI’s senior management blocked any prosecution because they did not want to get offside with the commercial industry. It was a Newshub investigation which prompted the review; [name of reporter] broke this story and is with us now.

[6]  The reporter then stated:

The report says MPI did not enforce the very law it is responsible for and its decision not to prosecute fishermen was ‘flawed’. MPI’s own senior managers gave a direction to ‘ignore discarding and misreporting’ of fish during a 2009 observer programme, and this continued up until 2013.

[7]  The reporter then referred to the recent resignation of two senior MPI officials, stating:

We can reveal that two senior MPI officials, [B] and [A], resigned from MPI after Newshub broke this story. MPI says their resignation has nothing to do with this investigation, but sources within the Ministry have told me that is not the case.

[8]  Photographs of A and B, with their names alongside the photographs, were shown onscreen while the reporter made this statement.

[9]  The reporter went on to discuss the events that led to the review. MPI Director-General Martyn Dunne was shown saying, ‘the way in which the decision not to prosecute over the apparent dumping of quota fish... was made, is regrettable’.

[10]  The resignations were then referred to a second time, as the reporter said:

Two months after [the issues subject to the investigation were] revealed, out came two emails from MPI sent to all staff – [A] and [B] had resigned – although the boss claims that has nothing to do with the failure to prosecute.

[11]  Mr Dunne was then shown saying, ‘It is a coincidence, but it has nothing to do with it.’

[12]  There was a high level of public interest in the primary focus of the item, being the Heron review, and it carried high value in terms of the exercise of freedom of expression. The item reported on the outcome of an independent investigation by Michael Heron QC scrutinising the actions of a large government department. The review ultimately found that some of MPI’s fisheries prosecution decisions were ‘flawed’,¹ and it was in the public interest to report on this matter. There was arguably less public interest in the two resignations, which were peripheral to the main focus of the item, and naming the two officials who had resigned (which we discuss further in paragraph [19] below).

[13]  The broadcaster’s right to broadcast the information contained in the item about the Heron review, and the public’s right to receive that information, must be weighed against the harm alleged to have been caused by the item. Here, MPI has submitted that harm was caused to A’s and B’s professional reputations by relying on what it says were inaccurate and unfair allegations regarding the reasons for their resignations.

Was either A or B treated unfairly?

[14]  The fairness standard (Standard 11) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.²

[15]  Guideline 11d to the fairness standard states that if a person or organisation referred to or portrayed in a broadcast might be adversely affected, that person or organisation should usually be given a fair and reasonable opportunity to comment for the programme, before it is broadcast. What is ‘fair and reasonable’ will depend on the circumstances.

The parties’ submissions

[16]  MPI submitted that:

• The allegations from anonymous sources questioned the motivation for two senior officials leaving MPI, implying that they did so as a result of their involvement in past actions that were the subject of the Heron review, thus undermining their reputations.
• A and B were not given a fair and reasonable opportunity to comment on the allegations, especially given Newshub was working on the story for a period of at least six weeks prior to broadcast.
• It was unreasonable for MediaWorks to rely on the fact that Mr Dunne’s statement, which allegedly reflected A’s and B’s position, was included in the item, as the reporter undermined those comments by referring to anonymous allegations that had never been raised in full with Mr Dunne.
• MPI did not refuse Newshub’s request for comment on 2 August 2016 regarding A’s resignation – it responded, but the full comment was not reflected in the broadcast.
• The broadcaster’s phone call to the MPI media team on 16 September 2016 related to a different matter and was not relevant to the issues raised in this complaint (see third point in MediaWorks’ submissions below).
• MPI was never approached for comment on B’s resignation and it was not fair or reasonable for MediaWorks to have assumed his position would be reflected by Mr Dunne’s statement.

[17]  MediaWorks submitted that:

• In this case, MPI had made it clear to the reporter that all inquiries should be directed to MPI rather than to individuals employed by MPI.
• On 2 August 2016, Newshub approached the MPI media team requesting comment from A about his resignation.
• On 16 September 2016, Newshub phoned the MPI media team and asked to interview A and another MPI employee.
• On 16 September 2016 during a media conference, Newshub asked Mr Dunne whether A’s and B’s resignations were related to the Heron report. Mr Dunne stated that the timing of the resignations was a coincidence. MediaWorks understood from MPI’s correspondence that Mr Dunne’s statement reflected A’s and B’s position, and this position was reported in the item.
• On 19 September 2016 (three days after the broadcast), MediaWorks’ Chief News Officer responded to MPI’s initial letter outlining their concerns with the item. He wrote, ‘If you would like to make any further statements in relation to this matter, either on behalf of MPI or [A] or [B], we would be happy to include these as an addendum to the online story.’ This gave the two senior officials another opportunity to respond to the allegations.
• In these circumstances, reasonable efforts were made to seek comment, and A and B were treated fairly.

Our analysis

Jurisdictional matter

[18]  It is well established that the Authority’s jurisdiction is limited to matters raised in the original complaint, and does not extend to issues added at a later stage in the complaints process.³ In its original complaint, MPI alleged the Newshub item was unfair to the two senior officials, A and B. In its referral to the Authority, MPI also alleged unfairness to MPI’s Director-General, Mr Dunne. As unfairness to Mr Dunne was not raised in MPI’s original complaint, the Authority is limited to considering the fairness standard only in relation to A and B.

Did the item have the potential to adversely affect A or B?

[19]  The first question for the Authority in considering the fairness complaint is whether the item had the potential to adversely affect A or B. In our view, the item contained a strong inference that the resignations of the two senior officials were a consequence of the investigation. The identification of A and B by name and the use of large photos of each individual onscreen, in our view, unduly highlighted the two individuals. A’s and B’s resignations were not the main focus of the broadcast, yet they were drawn into the discussion of the outcome of the Heron review in a way that clearly had the potential to detrimentally impact on their professional reputations. In these circumstances, they ought to have been given a fair and reasonable opportunity to respond (guideline 11d).

Were A and B given a fair and reasonable opportunity to comment on the allegations?

[20]  We understand from the information provided to us that the broadcaster made the following attempts to contact MPI for comment in relation to the item:

• On 2 August 2016 (prior to release of the Heron Report), the broadcaster emailed MPI’s media team asking, ‘Does [A’s] resignation from MPI have anything to do with the current investigation into the decisions not to prosecute fishermen over alleged illegal activity?’ MPI responded, ‘No, and it should be noted he had no role in the decisions not to prosecute.’
• On 16 September 2016 (the day of the broadcast), during the press conference which accompanied the release of the Heron report, the broadcaster asked Mr Dunne whether A’s or B’s resignations were connected to the report. Mr Dunne’s response that the resignations were not related, and that the timing of their resignations was a coincidence, was included at two separate points during the item.
• On 19 September 2016 (three days after the broadcast), MediaWorks’ Chief News Officer responded to MPI’s Chief Legal Advisor’s initial letter outlining MPI’s concerns with the item. He wrote, ‘If you would like to make any further statements in relation to this matter, either on behalf of MPI or [A] or [B], we would be happy to include these as an addendum to the online story.’

[21]  We acknowledge that the broadcaster contacted MPI’s media team (as apparently instructed by MPI) in relation to A’s resignation six weeks prior to the broadcast, and part of this response was broadcast, but not the full response. The broadcaster did not include MPI’s statement that A had no role in the fisheries prosecution decisions in the item. We also acknowledge that the broadcaster questioned Mr Dunne about both A’s and B’s resignations at the press conference that was held on the day of the broadcast, and his response – that the resignations had nothing to do with the Heron report – was twice included in the item.

[22]  However, we do not think the broadcaster should have assumed that Mr Dunne’s statement represented both A’s and B’s respective positions. The Authority has previously found that it was unfair for employees to not be given an opportunity to respond to adverse comments about them, although comment was sought from the CEO.⁴ As the implications broadcast in the item had the potential to adversely affect A and B in a significant way, we consider that in the interests of fairness, it was necessary to seek comment from the two individuals directly affected by the allegations and give them an opportunity to respond.

[23]  We acknowledge the broadcaster’s view that, in circumstances where it believed it was instructed by MPI to direct questions about MPI staff to the MPI media team, it made reasonable efforts to obtain comment. However, it would still have been possible for the broadcaster to put the allegations to, and seek comment from, the individuals affected, via the MPI media team. This did not occur here in our view. On each occasion the correspondence was clearly addressed to MPI, and it was not specified that a response was being sought from either A or B individually. It is one of the fundamental principles of fair treatment that individuals whose reputations or dignity may be detrimentally affected by a broadcast are given the chance to defend themselves, or mitigate any potential impact on them. Regardless of whether the request for comment was declined, or the nature of the response that A and B would have been able to provide, the broadcaster was obliged to at least make a reasonable attempt to seek comment from them.

[24]  We accept that it was in the public interest to report on the findings of the Heron review with regard to MPI’s actions. We are not persuaded, however, that it was necessary, or that there were sufficient public interest justifications, to refer to two identifiable former employees of MPI by full name and by photograph. This is particularly so where the Heron report was careful not to name individual employees, and where MPI as an organisation had accepted responsibility for the identified ‘flaws’ in its earlier decision-making.

[25]  For these reasons, we find that the Newshub item resulted in unfairness to A and B, and we uphold the complaint under Standard 11. We are satisfied that this does not unreasonably limit the broadcaster’s right to freedom of expression. We are not suggesting that the item should not have been broadcast at all. Where this piece fell short of meeting the requirements of the standard was the broadcaster’s failure to duly approach the individuals affected by the item (even if that was via MPI) in accordance with fairness principles.

Was the broadcast inaccurate or misleading?

[26]  The accuracy standard (Standard 9) states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead. The objective of this standard is to protect audiences from being significantly misinformed.

The parties’ submissions

[27]  MPI submitted that:

• There was no connection between the resignations of A and B and the Heron report, as they were both moving to senior roles elsewhere in the public sector. The fact these appointments were announced after the Heron review was commenced was pure coincidence.
• MediaWorks did not take adequate steps to check and verify the information from its alleged sources. If alerted to the allegations, MPI could have provided information to refute them.
• It was questionable whether Newshub did receive its information from internal sources, and it would have been insufficient and unreasonable for Newshub to rely on its sources’ alleged track record without more. Newshub should have ensured that the sources were in a position to know the reasons for the resignations and, given the potential effect on reputations, checked the accuracy of the anonymous allegations with MPI and the affected persons.
• MPI’s statement on 2 August 2016 that A had no role in the prosecution decisions, and Mr Dunne’s statement that directly contradicted the allegations, should have raised doubts about the reliability of Newshub’s sources. The lengthy process involved in making senior state-sector appointments should also have cast doubt on the reliability of the allegations.

[28]  MediaWorks submitted:

• The accuracy standard only requires broadcasters to make ‘reasonable efforts’ (rather than exhaustive efforts) to ensure programmes are accurate in relation to all material points of fact and do not mislead, which occurred in this case.
• Newshub’s reporter relied on multiple separate sources within MPI, all of whom confirmed the information included in the item. Newshub verified the information it received with each source on multiple occasions. Further, Newshub had worked with these sources previously, and the information provided by them previously had proven to be accurate. Therefore, Newshub’s view was that the sources, and the information, were credible.

Our analysis

[29]  It is not the role of the Authority in this case to determine whether, in fact, A’s and B’s resignations were connected with the Heron review. The question for us is whether the broadcaster has demonstrated it made reasonable efforts to ensure that what was reported during the Newshub item was accurate, and would not have misled viewers.

[30]  The reporter’s statement about the resignations in the item was clearly attributed to its confidential sources. Based on the information provided to us, we are satisfied that the broadcaster made reasonable efforts to ensure the accuracy of the information provided by these anonymous sources, and had reasonable grounds to believe that the sources were credible, taking into account the following:

• The information was obtained from multiple, separate sources.
• The information was verified with each source on multiple occasions.
• The broadcaster had worked with these sources previously, and on those occasions the information provided by them had proven to be accurate.

[31]  Additionally, and importantly, throughout the item the allegations from the anonymous sources were presented alongside MPI’s position, that the resignations and the Heron report were unrelated. MPI’s position was clearly put forward twice during the item, each time A’s and B’s resignations were referred to. In this context, the audience was made aware that there were differing views as to the motivations for the resignations, and would not have been misled.

[32]  For these reasons, notwithstanding our finding that the broadcaster did not ensure fair treatment of the two senior officials before broadcasting the matter on national television, we do not uphold the complaint under the accuracy standard.

[33]  We note in this respect that the objectives of the fairness and accuracy standards are different. It does not automatically follow that a breach of one will result in a breach of the other. The fairness standard is specifically concerned with individual rights and harm to individuals, such as damage to their reputation and dignity. The accuracy standard is concerned with a more general harm to audiences, through the provision of misinformation. The purpose of seeking comment from A and B (which we have found was required in the interests of fairness) would not be to corroborate or verify the sources of the information contained in the broadcast, but rather to ensure the two individuals had a reasonable opportunity to respond to allegations made about them. In this case, while the broadcaster fell short of meeting its requirements under the fairness standard, we find it did make reasonable efforts to ensure accuracy and satisfied its obligations under Standard 9.

For the above reasons the Authority upholds the complaint that the broadcast by MediaWorks TV Ltd of an item on Newshub on 16 September 2016 breached Standard 11 of the Free-to-Air Television Code of Broadcasting Practice.

[34]  Having upheld one aspect of the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.

Submissions on orders

[35]  MPI submitted that MediaWorks should acknowledge the Authority’s decision in the form of a brief written statement of apology delivered to A, B and Mr Dunne.

[36]  MediaWorks submitted:

• The standards department and legal team had discussed the Authority’s decision with the reporter responsible for the story: ‘The shortcomings in the reporter’s investigation were highlighted and the requirements of the fairness standard reinforced’.
• The Authority’s warning not to assume that an employer can represent an employee’s position had been promulgated to the entire newsroom.
• This case was not a serious breach of standards. Publishing the Authority’s decision would be sufficient to remedy the breach of the fairness standard because it will:
    o clearly establish the broadcast’s shortcomings as identified by the Authority; and
    o remedy the unfairness to A and B by restating MPI’s assertion that their resignations had nothing to do with the Heron report, and reframe aspects of the report that may have reflected negatively on the two individuals.

Authority’s decision on orders

[37]  When the Authority upholds a complaint, the factors we take into consideration in determining whether orders are warranted include:⁵

• the seriousness of the breach, and the number of upheld aspects of the complaint
• the degree of harm caused to any individual, or to the audience generally
• the objectives of the upheld standard(s)
• the attitude and actions of the broadcaster in relation to the complaint (eg, whether the broadcaster upheld the complaint and/or took mitigating steps; or whether the broadcaster disputed the standards breach and/or aggravated any harm caused)
• whether the decision will sufficiently remedy the breach and give guidance to broadcasters, or whether something more is needed to achieve a meaningful remedy or to send a signal to broadcasters
• past decisions and/or orders in similar cases.

[38]  Having regard to these factors, we have concluded that orders are not warranted in this case. While we have found that MediaWorks fell short of meeting its obligations in relation to fairness, and the resulting broadcast had the potential to cause serious reputational harm to A and B, we consider that this decision sufficiently marks the breach of standards and will offer guidance to broadcasters regarding the requirements of the fairness standard. The broadcaster has accepted the ‘shortcomings in the reporter’s investigation’ and discussed the decision with the reporter in question. It has also reinforced the requirements of the fairness standard to its newsroom, specifically in relation to the point that an employer cannot be assumed to represent an employee’s position.

[39]  We note that MPI has asked that MediaWorks deliver a brief written apology to A, B and Mr Dunne. We encourage this course of action regarding an apology to A and B, having found they were treated unfairly, and it appears this will largely address MPI’s concerns. As our decision does not address any unfairness to Mr Dunne, we leave this part of MPI’s request to the broadcaster to consider. 

Signed for and on behalf of the Authority

Peter Radich
Chair
15 May 2017

Appendix

The correspondence listed below was received and considered by the Authority when it determined this complaint:

1  Initial correspondence between MPI and MediaWorks regarding complaint – 17-22 September 2016
2  MPI’s formal complaint – 19 September 2016
3  MediaWorks’ notification of extension to respond and MPI’s response – 13 and 18 October 2016
4  MediaWorks’ response to the complaint – 9 November 2016
5  MPI’s referral to the Authority (including earlier correspondence between Newshub and MPI) – 7 December 2016
6  MediaWorks’ response to the Authority – 13 January 2017
7  MediaWorks’ submissions on the provisional decision and orders – 28 March 2017
8  MPI’s submissions on the provisional decision and orders – 28 March 2017
9  MediaWorks’ response to the Authority’s request for further information – 5 April 2017
10  MPI’s response to MediaWorks’ further submissions – 12 April 2017

¹  Independent Review of MPI/MFish Prosecution Decisions: Operations Achilles, Hippocamp and Overdue (Michael Heron QC, September 2016): https://mpi.govt.nz/protection-and-response/environment-and-natural-resources/sustainable-fisheries/independent-review-of-prosecution-decisions/  
²  Commerce Commission and TVWorks Ltd, Decision No. 2008-014
³  For example, see White and Television New Zealand Ltd, Decision No. 2015-042 at [27]
⁴  HC and CT and Television New Zealand, Decision No. 2010-163
⁵  Guide to the BSA Complaints Process for Television and Radio Programmes, Broadcasting Standards in New Zealand Codebook, page 58.